R v Pisiris [2004] VSC 26

Supreme Court of Victoria|2004-02-12|Before: BONGIORNO J

Criminal law - Sentencing - Young offender - Intentionally cause serious injury - 5/2years 9 months - victim impact statement - s.95B Sentencing Act 1991.

Paul Nicholas Pisiris, you were acquitted by a jury on 24 September 2003 of one count of attempting to murder your brother Sam but were found guilty by that jury of having intentionally inflicted serious injury upon him. Your counsel presented a plea on your behalf on 16 December 2003. It is now my duty to sentence you according to law.

The events immediately surrounding the offence of which you were found guilty can be described shortly.

At about midnight on Sunday 8 December 2002 you arrived home at the house you then shared with your brother and your mother to find your brother lying on a couch in the living room watching television. He was speaking on his mobile phone. After he finished that phone conversation he put a video into the VCR attached to the television and began to watch it. You sat next to him and also began to watch the video.

At about 12.30 a.m. your mother arrived home and shortly thereafter went to her own bedroom to go to bed.

Some time between about 1.40 a.m. and 2.30 a.m. your brother fell asleep on the couch. You remained awake and became angry and agitated about your relationship both with your mother and your brother. You became so angry that at some point you decided to kill your mother and your brother and then take your own life. As you did not harm your mother and the jury acquitted you of attempting to murder your brother, your state of mind at this particular point is now of little relevance. However that may be, you then went to your bedroom and sat on the edge of your bed for some time before taking a steel go-kart axle, which you had, which weighed about 3.5 kilograms and applied to it strips of rubber and black adhesive tape to construct a grip or handle at one end.

Having thus prepared a potentially lethal weapon you took it to the loungeroom and struck your brother with it as he slept. You struck him on the right side of the head above the right ear. At this point, not surprisingly, your emotions were in turmoil and you immediately regretted what you had done. You went to the kitchen, took a kitchen knife, returned to your bedroom and cut your own throat. This episode of self-harm was no mere gesture. The severity of your injuries demonstrate that it was a serious suicide attempt.

Shortly afterwards your mother came from her bedroom to find your brother stumbling around the lounge and kitchen area with his eyes closed, moaning and found you in your room bleeding from a severe knife wound to your throat.

The ambulance service and police were called to your home and your brother was taken to the Northern Hospital and later the Royal Melbourne Hospital for treatment. You were taken to the Royal Melbourne Hospital in a separate ambulance accompanied by police.

The injuries sustained by your brother were serious. They were life threatening. He had a depressed fracture in the right fronto-temporo-parietal region of his skull with bruising or contusion of his brain in the same area. He required surgical treatment and extensive rehabilitation. In a victim impact statement which he made on 15 December last he sets out in some detail the consequences of this attack upon him as he now perceives them to be. He says that his memory, concentration and attention have been affected and that his thinking is slower. He is self-conscious about the scar on his head where hair will not now grow. He was on anti-seizure medication for some time and is no longer able to drink alcohol. He says that he has been out of work since your attack upon him and feels very depressed when he contemplates his situation as he perceives it to be. Although there is no medical evidence before the Court as to your brother's long term prognosis the severity of his injury and such evidence as there is as to his treatment from his treating neurosurgeon suggests that he may well have long term problems.

The events of 8 December 2002 did not occur in a vacuum. They followed an incident in February 2002 in which you had attempted suicide by deliberately driving your car into the front of a service station. In that incident you suffered fairly widespread injuries including comminuted fractures to your spine and right ankle. You told Dr Lester Walton, a psychiatrist who assessed you on 26 November 2003, that you estimated that you spent about three months in hospital altogether as a result of these injuries.

Whilst you were in hospital, or so you believed, your brother Sam and your mother removed stereo equipment from your damaged car and sold it. Further, you believed, probably correctly, that the conversation in which your brother was engaged on his mobile phone when you arrived home on the night of this offence was with the friend to whom, as you believed, he had sold that stereo equipment and that that conversation was about that equipment.

As a result of an order which I made following your trial on the attempted murder charge you were examined by Dr Lester Walton in his capacity as a consultant psychiatrist to St Vincent's Correctional Health Service, the health service provider at Port Phillip Prison. Dr Walton noted that you had been a semi-regular marijuana smoker for some time at the time of this offence and whilst he said that he would not describe you as substance-dependent he regarded it as not improbable that this drug abuse aggravated depressive tendencies which you already had. These tendencies were, no doubt, caused or at least exacerbated by the somewhat disrupted home life which you had experienced, which disruption you attributed to your father's violence. Another contributing factor was, probably, your poor educational history which, as you told Dr Walton, involved your leaving school part way through Year 10.

Dr Walton reported that you could provide no ready explanation as to why you were moved to exhibit such extreme violence towards your brother on the night of this offence. Whilst he saw that violence as impulsive to a degree, he considered it to be short of an immediately reflexive response to the stress you felt by overhearing your brother's conversation with his friend about the parts taken from your car.

You impressed Dr Walton as being appropriately remorseful for the injury you had inflicted on your brother and he noted your acknowledgment that the aggression you had displayed was markedly in excess of any understandable basis for anger. He considered you to be well motivated towards rehabilitating yourself and expressed reassurance that there did not appear to be any established pattern of aggressive behaviour on your part. He considered that your period of remand incarceration appeared to have had a salutary effect upon you to the extent that he doubted that there would be any further enhancement of specific deterrence in your case merely by continuing that incarceration.

As I have already mentioned, the Court has been provided with a victim impact statement by your brother. That statement is extensive. It not only sets out your brother's perception of his own condition brought about by your attack upon him but also expresses his anger at you for what you did and expresses the hope that you are sentenced to the "maximum penalty" because, as he put it, you have "stuffed up the rest of (his) life".

The purpose of a victim impact statement is to put before the Court particulars of any injury, loss or damage suffered by the victim of a criminal offence. It is not the function of a victim impact statement to advocate the imposition of any particular sentence, much less to advocate the imposition of the maximum sentence. Police officers and others concerned with advising victims of offences as to the preparation of victim impact statements should bear in mind the purpose for which they are prepared and the information which the law permits or requires them to contain. The material contained in victim impact statements is privileged. Care should be taken to omit, so far as possible, inappropriate facts or opinions which can have no appropriate bearing on the sentencing process or which could be said to be an abuse of that privilege.

In this case the Court will take into account the effect that this offence has had upon the victim of it as set out in the victim impact statement to which I have referred.

I have already referred to Dr Walton's opinion as to the remorse which you have suffered as a result of the injury you have inflicted upon your brother. I have no doubt that this remorse is genuine and that it affected you virtually immediately upon your commission of the offence. Your attempt at suicide was, it would appear, serious and real. Further, you have been prepared to plead guilty to the offence of which you were ultimately convicted at all relevant times, a matter which you are entitled to have taken into account not only with respect of the question of remorse generally but, specifically, having regard to the provisions of the Sentencing Act 1991.

Your counsel urged the Court to take into account your youthfulness and the extremely unhappy circumstances in which you have spent most of your life to date. He relies upon Dr Walton's report as demonstrating that you have increasing insight into your family's domestic situation and that you have begun to realise that that situation is, at least, partly your fault and not entirely that of your mother and your brother as you had previously maintained.

The Court will take into account your age and the fact that such prior criminal history as you have derives, again, from the domestic situation in which you found yourself. Indeed, a prior conviction for dangerous driving appears to have arisen out of your first attempt at suicide when you drove your car into the front of a service station.

Your work history since leaving school has been largely unimpressive until, according to your counsel, you gained an apprenticeship in March 2001 as a fitter and turner which apprenticeship was still continuing at the time you received the injuries in the car incident which put you in hospital. However, since being on remand you have completed a number of courses conducted by the prison educational authorities suggesting that you may have some reasonable prospects of being able to apply yourself in an appropriate work situation upon your release. It is to be fervently hoped so.

In sentencing you the Court is required to take into account the gravity of the offence which you committed, the need to deter you specifically from committing offences of a like nature again, the need to deter others who might be minded to resort to violence as a means of solving relationship problems and the need to denounce behaviour such as yours in the strongest possible terms. The Court must also take into account the protection of the community.

Questions of deterrence and denunciation, in this case, can only be addressed by the imposition of a custodial sentence. So far as protection of the community is concerned the best protection the community can achieve through the sentencing process is for someone in your position to be rehabilitated such that the possibility of re-offending becomes remote. In your case, as I have said, there are good prospects of your rehabilitation. The community will be protected if that rehabilitation is completed and you come out of prison with a firm resolve not to offend again. Should you so offend again such leniency as your youth and other factors now entitle you to will not apply and your sentence will, accordingly, be the more severe.

You have been in custody since the commission of this offence but for some of that time you were serving the unexpired portion of an intensive correction order which had been imposed upon you after the dangerous driving episode in which you attempted to kill yourself. The sentence this Court will impose will be imposed upon the assumption that you have now completed the whole of the gaol sentence which you had to serve as a result of being unable to complete the intensive correction order to which I have referred and you have served a further 333 days pre-sentence detention up to today in respect of this offence.

The sentence of the Court is that you be imprisoned for five years. It is further ordered that you serve a minimum of two years and nine months before being eligible for parole. It is declared that the period of 333 days including today is to be reckoned as pre-sentence detention already served in respect of the sentence now imposed and it is ordered that this declaration and its effect be entered in the records of the Court.

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